Transport by rail – legal basis and liability for damages

The national railway freight law is regulated in §§ 407 – 475 HGB. A freight contract with Deutsche Bahn AG, which is based on its General Terms of Service (ALB), requires special attention. In international rail freight transport, on the other hand, the Uniform Rules concerning the Contract for the International Carriage of Goods by Rail (CIM; original: Règles uniformes concernant le contract de transport international ferroviaires des marchandises) are of the utmost importance.

National rail freight law

In principle, national railway freight law is governed by §§ 407 – 475 HGB. Separate regulations used to be contained in the Railway Transport Ordinance (EVO), which now only applies to the carriage of passengers and luggage. For the most part, rail freight law is aligned with the CMR regulations. In addition, Deutsche Bahn AG’s General Terms and Conditions of Service (ALB) apply to freight traffic.

Special conditions of Deutsche Bahn AG – ALB

The GT&C of Deutsche Bahn AG refer to services which are the carriage, transshipment or interim/storage of goods or other transport-related services (section 1.1. GT&C). DB enters into a 12-month service agreement with each customer on which future services are based (Section 2.1. GT&C). A special feature is the handling of the consignment note to be issued by the customer on a specified DB form. The consignment note is not signed by the DB, which means that the consignment note has no increased evidential value (Section 3.1. ALB).

If the customer causes damage to the wagon or the loading unit, he must be liable for this, unless the defect responsible for the damage already existed at the time of handover (Section 4.5. GT&C). In addition, the wagon or the loading unit must be returned completely emptied and cleaned. In the event of non-compliance, the customer must be liable for the resulting damage (Section 4.6. ALB).

DB’s liability for total or partial loss or damage is limited to 8.33 units of account per kilogram (No. 12.1. GCI in conjunction with § 431 II HGB), however, an amount of 1 million euros or two units of account per kilogram per claim cannot be exceeded (No. 12.2. GCI).

International Rail Freight Law – CIM

The CIM apply to any contract for payment which concerns the carriage of goods by rail and at which the place of taking over and the place of delivery are located in two different Member States (Article 1 § 1 of CIM) or the application of CIM has been contractually agreed if only one of the two places is located in a Member State (Article 1 § 2 of CIM). Article 1 § 1 of CIM expressly points out that it does not matter where the contracting parties are based. Countries through which the goods are merely transported but are not delivered there are insignificant for the application of CIM.

CIM is mandatory law for the acceding Member States (Art. 5 CIM). Other agreements such as the ADSp are therefore of secondary importance.

Conclusion of the Rail Freight Contract (Art. 6 § 2 CIM)

The proper preparation of a CIM consignment note is not decisive for the validity of the rail freight contract in accordance with CIM. Rather, it depends on the agreement of the parties involved (Article 6 § 2 CIM). Nevertheless, the consignment note may be binding in certain cases. If the transport affects the customs territory of the European Community or the territory in which the common transit procedure is applied, a consignment note must be available for easier customs clearance (Art. 6 § 7 CIM).

Liability of the carrier and the consignor under CIM

The carrier’s liability relates exclusively to the time between taking over and delivery of the goods. He shall be liable for damage resulting from the complete or partial loss, damage or delayed delivery of the goods (Article 23 § 1 of CIM). Article 23, § 2 and 3 of CIM specify numerous cases in which the carrier is released from his liability. In the event of total or partial loss, the liability amount is limited to a maximum of 17 units of account per missing kilogramme gross mass (Article 30, § 2 CIM). In the event of damage to the goods, a liability sum corresponding to the reduction in value is to be paid (Article 32 § 1 of CIM), which may not, however, exceed the amount in the event of total loss of the goods (Article 23 § 2 of CIM). If the delivery period is exceeded, the liability sum is limited to four times the freight (Art. 33 § 1 CIM). In addition, there are special provisions concerning the combination of exceeding the delivery period and loss or damage (Art. 33 §§ 2 ff. of CIM). Any existing restrictions on the amount of liability shall not apply in the event of intentional damage or reckless action (Article 36 CIM).

The sender is liable for damage resulting from incorrect or omitted information in the consignment note (Art. 8 § 1 CIM), defective loading by the consignor (Art. 13 § 2 CIM) or defective packaging of the goods (Art. 14 CIM). In the latter case, liability is excluded if the defect was obvious or known to the carrier, but he made no reservations (Article 14 CIM).

Further regulations in railway transport

In addition to the provisions of CIM, there are other regulations relating to special cases of rail freight law. For example, the carriage of dangerous goods is determined in accordance with the Regulation concerning the International Carriage of Dangerous Goods by Rail (RID; original: Règlement concernant le transport international ferroviaire de marchandises Dangereuses). With RID, however, only one set of rules is mentioned among many other sets of regulations.

 

Lawyer Dr. Tristan Wegner

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